The Transgender Persons (Protection of Rights) Bill, 2016

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Highlights of the Bill

  • The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.  In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.
  • A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.
  • Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee.  The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
  • The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare.  It directs the central and state governments to provide welfare schemes in these areas.
  • Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.

Key Issues and Analysis

  • The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution.   However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
  • The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity.  However, it does not provide for the enforcement of such a right.  A District Screening Committee would issue a certificate of identity to recognise transgender persons.
  • The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India.
  • The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons.  However, these terms have not been defined.
  • Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’.  It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.

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